M. Maltz

The defendants in a nuisance action brought a motion for leave to bring a motion and for an order to inspect the plaintiffs' property under Rule 32 of the Rules of Civil Procedure.

The parties were involved in two separate actions regarding a dispute over encroaching earth and water.

The defendants had previously been ordered to seek leave before bringing further motions due to past intransigence.

The court granted leave, finding the defendants had not been frivolous or vexatious in recent years.

The court also granted the request for inspection, allowing the defendants' experts to visually inspect the plaintiffs' property, as it was necessary for the proper determination of the issues and would not cause prejudice.

Costs of $23,000 were awarded to the moving parties.

The plaintiffs brought a motion seeking authorization to enter the defendants’ property to remediate a failing retaining wall previously constructed pursuant to court orders arising from a nuisance dispute involving runoff and soil movement between adjacent properties.

Applying the injunctive relief framework from R.J.R. – MacDonald Inc. v. Canada (Att.-Gen.), the court found a serious issue regarding the plaintiffs’ right to prevent soil and debris flowing from the defendants’ property, irreparable harm if the wall collapsed, and that the balance of convenience favoured the plaintiffs.

Although the current structural failure was not directly caused by the defendants, the court held they remained ultimately responsible due to their prior alteration of land elevation and delays in remedying the problem.

The court authorized the plaintiffs to undertake remedial work and ordered the defendants to pay outstanding amounts owed under a prior order, with further provisions governing engineering oversight if warranty coverage failed.

Following a successful motion to change child support, the moving party sought costs.

The court found the moving party had made a compliant offer to settle under the Family Law Rules that was more favourable to the opposing party than the final order.

The opposing party argued that costs should be reduced due to the moving party’s pre‑litigation conduct, the impact of costs on adult children still attending university, and allegedly excessive legal fees.

The court held that unreasonable conduct under Rule 24(4) and (5) concerns behaviour during the litigation rather than pre‑litigation conduct.

Finding the moving party’s litigation conduct reasonable and the claimed fees appropriate for the complexity and time span of the issues, the court awarded fixed costs.

The moving party brought a motion to change a 1999 divorce order requiring monthly child support of $762, seeking termination of support effective December 1999 and rescission of accumulated arrears.

The court considered whether a material change in circumstances existed under s. 17 of the Divorce Act and the Child Support Guidelines.

Evidence established that the payor had never earned the income assumed in the original order and had operated a consistently unprofitable business while accumulating significant debt and relying on loans for subsistence.

The court imputed modest income beginning in 2006 and recalculated historical support obligations.

Because the payor had already paid more than what the recalculated guideline amounts required, all arrears were rescinded and prospective support was set based on an imputed income.

The plaintiffs brought a motion relating to the implementation and costs of a court-ordered construction project designed to remedy drainage and property impacts caused by alterations to neighbouring land.

The court reviewed affidavits from engineers addressing cost increases associated with implementing the approved design plan.

It accepted evidence that increased costs arose primarily from unforeseen soil conditions and confirmed that construction costs had been properly segregated from litigation costs as previously ordered.

The court found that the plaintiffs had demonstrated the reasons for the cost overruns and that the project had been completed despite interference by the defendant.

The motion was granted as requested, with payment directed to be held in trust for the contractor and engineer.

Neighbouring property owners were engaged in protracted litigation concerning drainage and elevation changes caused by fill placed on the defendants’ property.

Earlier court orders required the construction of a retaining wall according to an agreed engineering design, with costs to be borne by the defendants.

After construction was completed, the plaintiffs sought payment of outstanding balances to the contractor and engineer from funds held in court and an order requiring the defendants to pay the remaining amount.

The defendants argued the wall was built according to a materially different plan than the one approved by court order and consent.

The court held that the work had proceeded without prior approval despite deviations from the approved design and costs exceeding the estimates, and required further affidavit evidence from the supervising engineer addressing the cost impact of those deviations before determining the remaining issues.